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HCMA271/2008
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IN THE HIGH COURT OF THE
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HONG KONG SPECIAL ADMINISTRATIVE REGION
D COURT OF FIRST INSTANCE D
MAGISTRACY APPEAL NO. 271 OF 2008
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(ON APPEAL FROM KCCC 6200 OF 2007)
F _______________ F
G G
H BETWEEN H
HKSAR Respondent
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J and J
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CANAVERAL, JOEMAR ROBLAS (D1) 1st Appellant
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SOLIVEN, CAROLINE EROJO (D2) 2nd Appellant
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O Before: Deputy High Court Judge Line in Court O
Date of Hearing: 22 May 2008
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Date of Judgment: 22 May 2008
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S JUDGMENT S
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1. This is an appeal against an order for costs that was made in
C favour of the two Appellants in the sum of $10,000 when a charge they C
both faced of the possession of ammunition was withdrawn at Kowloon
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City Magistrates’ Court on 18 February of this year.
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2. It all came about in this way. On 6 October, the two
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Appellants were arrested. They appeared in the Magistrates’ Court on
G 8 October, where the prosecution applied for a remand in custody, G
objecting to bail, until 5 December. I have a transcript of what occurred
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then. The allegation against the 1st Appellant was that he had been found
I in possession, on his person, of 70 grammes of “Ice” and a key to a room in I
which a further 70 grammes of “Ice” were found. He shared the room
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with the 2nd Appellant and in the room there was, so the prosecution said,
K a loaded gun and a quantity of ammunition. Not surprisingly, in those K
circumstances, the bail application that was made failed and the remand in
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custody to 5 December took place.
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3. The 1st Appellant had denied to the police that he possessed
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any dangerous drugs and was silent in the face of the allegation about the
O ammunition, saying the gun was not his. The 2nd Appellant said she knew O
nothing about the gun or the cartridges but that the alleged “Ice” was some
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harmless talcum powder.
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4. By 25 October, not long after this event, the Government
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Chemist had analysed the alleged “Ice” and found that indeed it was an
S innocent talcum powder. It was not “Ice.” Also, by 12 October, the S
loaded gun had been found to be not even an imitation but a toy with some
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toy cartridges in it. There were a number of cartridges found, some of
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which did not meet the definition of being ammunition within the meaning
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of the Firearms and Ammunition Ordinance but there were some live
C Rimfire blank cartridges which were used in the operation of industrial C
fixing tools found there and they did meet the definition of ammunition.
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E 5. The Appellants instructed solicitors and those solicitors, on E
20 November, received the prosecution bundle. They then, on that date,
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were made aware that the “Ice” was no such thing, and neither was the
G loaded revolver anything other than a toy. It is worthy of remark here that G
the prosecution, with that knowledge and having secured the remand in
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custody, had taken no steps to inform the magistrate who had made that
I remand in custody of such a dramatic change of circumstance and there had I
been a delay in informing the defence of nearly four weeks.
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K 6. It is easy to sit here, perhaps, with the benefit of hindsight and K
criticise the actions people did or did not take at the time. But I would
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have thought that any criminal lawyers instructed on behalf of these
M Appellants, learning that the “Ice” was not “Ice”, learning that the loaded M
gun was just a mere toy, would on 21 November have got the case back
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before the Magistrates’ Court and made an application for bail. No such
O thing was done. A letter was written by counsel who had been instructed, O
dated 29 November, addressed to the police, asking them to withdraw the
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charge. Meanwhile, the Appellants remained in custody and they
Q remained so until 5 December. Q
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7. On 2 December a fax had been sent by the police, saying that
S the allegation of trafficking in “Ice” would not be pursued; that there would S
be an amended charge of the possession of ammunition but that they would
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not be opposing bail. However, on 29 November a brief had been
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delivered to counsel to seek bail. The brief fee on that, and I have a full
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bill of costs before me in this case, was $38,000. Bail was granted.
C Time went by. There was a remand until 14 February. Counsel had a C
conference with the Appellants, who were now facing the charge of
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possession of ammunition. In the circumstance, that seems to me to be a
E reasonable thing to have done. E
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8. On 14 February, four days before the adjourned hearing, a fax
G from the prosecution told the defence that the charge of possessing G
ammunition would be withdrawn. The next day, a brief was delivered to
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counsel, marked this time $25,000, to appear on 18 February in order to
I represent the Appellants when the case was to be withdrawn and to make I
an application for costs.
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K 9. On the 18th, the case was called on early in the morning. It K
was a very busy Court 1 at the Magistracy and there was some discussion
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about whether the matter should be adjourned, because counsel had
M commitments in the District Court that day. What in fact occurred was that M
the case was called on shortly before 4.30 in the afternoon, counsel having
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gone away to the District Court and returned after lunch. The solicitor
O who was instructing him, remained there the whole of the day, charging, O
incidentally, by the rate per hour something approaching $25,000.
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Q 10. There was, frankly, a misunderstanding between the Bench Q
and the Bar as to whether or not the application was to cover the costs of
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that day or just to be the one appearance on 5 December. What counsel
S had meant to indicate was that if the matter had to be adjourned to a further S
day, he would not claim for the instant day. That is quite apparent from
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the transcript.
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11. In the end, the magistrate, after a long day, was faced with
C competing claims because the prosecution objected to paying the costs C
claiming that the Appellants had brought the prosecution upon themselves.
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As is conceded today before me, that was unrealistic. The magistrate,
E doing the best he could in the circumstances, decided that $10,000 was an E
adequate figure for the defence costs .
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G 12. The charges here were extremely serious. For the possession G
of 140 grammes of “Ice” the starting point of imprisonment after trial is in
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double figure; likewise, for the possession of arms and ammunition,
I especially a loaded revolver. It is quite reasonable that people in those I
circumstances consult solicitors, who consult a senior junior, and costs are
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bound to be run-up when advice is given. It cannot be that $10,000 would
K be an adequate sum to meet those expenses. K
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13. There is no opposition to the fact that an order has to be made
M in favour of the Appellants and that the Respondents must pay some costs. M
The dispute is to how much. The amount claimed on the detailed bill of
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costs amounts to in excess of $160,000, $73,000 being counsel’s fees and
O $87,000 being the solicitors’ profits costs. O
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14. I have never taxed a bill in my life and I lack the expertise to
Q do it. I do not know the conventions that are adopted and the like, but Q
there are items that catch my eye here, such as the solicitor doing 2 hours
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of research into drug trafficking and the like, which would make me raise
S an eyebrow. The right person to deal with this is a taxing Master and that S
is the order I am going to make - that the Appellant have their costs, to be
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taxed if not agreed and that will apply to the proceedings here and below.
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15. What I think it right to point out, though, for the possible
C assistance of the taxing Master is that the size of the brief fee on C
29 November would appear very much on the generous side and it may be,
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by that stage when the defence knew that the “Ice” was not “Ice” and the
E loaded revolver was a mere toy, that not only were they going to win but E
they would win with their costs. It may be that the size of that brief fee
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could have reflected that. It is also right that the brief was delivered on
G 15 February, after the information had been transmitted on the day before G
that the charge would be withdrawn without - and this is upon inquiry here
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from me today - without any approach from the defence solicitors to see
I whether costs could be agreed, or agreed to be taxed in the absence of I
agreement as to the sum, without the necessity of briefing counsel. On the
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other hand, if they had made that inquiry, given the attitude of the court
K prosecutor on the day, it may have merely resulted in a refusal. Whether K
or not it was reasonable for a solicitor to remain all day at the Magistrates’
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Court on 18 February, with the meter running to the tune of $25,000, is a
M matter for which the taxing Master would have experience that I lack. M
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16. I have inquired, though it is not strictly necessary for the
O purpose of the disposal of this appeal, as to whether or not the Appellants O
have paid their solicitors. I am told they have. They have paid the bill in
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full. It is not for me to involve myself in the relationship between
Q themselves and their solicitors in respect of costs, though it does seem to Q
me right that they be made aware of what I have said today. Let me put it
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like this. It seems to me that they may have a legitimate grievance as no
S bail application was made between 20 November and 5 December. That S
resulted in them staying in custody significantly longer than necessary
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when a timely bail application earlier would have been highly likely to
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have secured their release on bail.
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17. As regards the costs of this hearing before me, the respondents
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have sought to resist the application for costs. They did so on the basis, in
E effect, that no detailed bill was put before the magistrate on 18 February E
and the nature of the application then made was not sufficient to help the
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magistrate get the figure right. In fact, the transcript shows that counsel
G was then asking for in excess of $30,000 costs and was asking that the G
matter be taxed in the absence of agreement. It was late in the day and the
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whole history and exactly what had happened was not put before the
I magistrate, but that was no real fault of either side in the circumstances. I
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18. In my judgment, today, costs must follow the event.
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19. It is a matter of grave disquiet that the prosecution sat on the
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information which would have let these Appellants out on bail earlier. It
M should not happen again. In circumstances like this, the police are under a M
duty not only to disclose the information immediately to the defence but
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also to let the court prosecutor and/or the Department of Justice know what
O has occurred. O
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20. The history of the case that I have outlined is really rather a
Q sorry one. The order I make, for the avoidance of any doubt, is the order Q
for costs of $10,000 be set aside and in its place there be an order that the
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Appellants have their costs here and below, to be taxed if not agreed.
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F (P Line) F
Deputy High Court Judge
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Representations:
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Ms Grace Chan, Senior Government Counsel of the Department of Justice,
for the Respondent
I Mr Philip Wong, instructed by May Cheng & Co., for the Appellant I
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